This introduction develops a theoretical framework for understanding authoritarian backsliding against the backdrop of existing historical and European socio-legal scholarship. It introduces a number of key distinctions to better understand socio-legal variance among autocratisation. Specifically, it highlights the distinction between authoritarian backsliding and complete breakdown of judicial independence and human rights

Authoritarian backsliding is an aggravated form of rule of law decay, where functioning of key rule of law institutions comes under direct threat and it is mostly observable in the contemporary Central and Eastern European context. This differs from historical instances of authoritarian turn referring to the complete breakdown of judicial independence and human rights, characterised by the politicisation of courts as a mainly historical phenomenon. The differentiation and their socio-legal implications is crucial for developing a roadmap to identify different forms of autocratisation and their different contexts (actors, institutional and political context) that need to be considered when addressing rule of law decay in Europe, both at the national and supranational levels. Ultimately, this general overview also offers the possibility to identify and address latent discontinuities in rule of law development at both the supranational and national levels. Identification of such latent discontinuities is of importance when assessing the risks involved in the introduction of emergency measures to combat perceived threats to the state and the society.

This article discusses the thin socio-legal conceptualisation of the rule of law in Hungary. Employing a culturalist perspective, it first shows how the rule of law had a thin foundation prior to the Second World War in this country. Then, the contribution demonstrates how, contrary to previous understandings, even in the most advanced stages of rule of law building in Hungary, in the early 1990s, the resulting concept had been thin mainly focusing on institutional guarantees and legal certainty. The remaining part of the contribution then critically discusses whether and to what extent it is possible to use backsliding to frame the ongoing legal changes in Hungary.

Both Hungary and Poland have been in the spotlight regarding their democratic backsliding, with Executives exerting control over supposedly independent pillars of democracy, such as courts or the media. While the concerns about these countries also voiced by leaders of European institutions were similar, the resistance against the systematic erosion of judicial independence comes in different forms. Using comparative longitudinal case study methodology, this article shows that a defining characteristic in the potential, visibility and feasibility of what judges did or could do under the current threats depends on the role judicial associations, understood as representative collegial judicial bodies. More precisely, the format, organisation and operative tools of judicial associations contribute to their influence on prior judicial reforms and their capacity to withstand ongoing efforts in curtailing their independence from political actors. Empirically, the article reviews multiple judicial changes in the 1992–2015 period in both countries and assesses how judicial associations then shaped the divergent responses to recent attempts at limiting judicial independence. The differences in the legal framework, organisation and network reliance explains variance in resistance. Overall, the article broadens the theoretical and empirical framework for studying the role of courts and judges with considerations regarding professional association organisation and co-ordination, as a potential layer of studying judicial resistance.

This article critically examines the significance of the relationship between past and present for understanding liberal democratic values in the European context. The article starts by reflecting on the terms used to evaluate the apparent decline in the rule of law in Europe, including ‘backsliding’. It argues that these terms are indicative of a conceptual framework of analysis that includes a temporal dimension but is only partly historical, demonstrating a presentist focus and a perception of the past as a separate period. The article links this perception with the conceptual construction of the rule of law itself, as well as national and transnational narratives about it, which evoke Europe’s non-democratic past as a definitional point of reference that is distinct from the present. Using examples of the legacies of Europe’s dark legal past, the article highlights the artificial nature of this distinction for a range of systems with differing historical experiences. The article argues that interpreting the past in terms of segmented and sequential temporal periods is conceptually contestable and it draws on the philosophy of history to show how the past can instead be understood to have ‘sedimentary’ layers and to endure over time. Ultimately, the article argues that the relationship between law’s past and law’s present needs to be reconceptualised in terms of metaphorical ‘fault lines’ in the rule of law, to acknowledge the potentially disruptive effects of history and to facilitate a critical reimagining of the rule of law’s theoretical and factual foundations.

It is now over ten years since the European Court of Human Rights (ECtHR or Court) first established that asylum seekers are inherently and particularly vulnerable on account of their very situation as asylum seekers. This occurred in its Grand Chamber judgment in the case of M.S.S. v Belgium and Greece. This article critically examines the Court’s subsequent asylum jurisprudence through the lens of vulnerability. The analysis reveals that the Court has engaged in ‘vulnerability backsliding’. Specifically, it traces the ways in which the Court has surreptitiously reversed the very principle of asylum vulnerability it itself established in M.S.S. The consequence of this backsliding is not only that the judicially recognised concept of asylum vulnerability is undermined, but that some of the most vulnerable applicants that come before the Court suffer renewed marginalisation, and, in some circumstances, exclusion from the ‘special protection’ to which they were previously afforded courtesy of M.S.S.

The term ‘ambition’ appears to have infiltrated international legal discourses: it is used to, for instance, lament the lack of state action to tackle major global challenges, praise progress towards difficult goals, or evaluate the outcomes of international law-making processes. Often mobilized, the concept of ambition in international law remains, however, poorly understood. And yet, each narrative offers a specific analytical frame that influences our understanding of the world and sets distinct policy prescriptions. What argumentative functions do ambition narratives play and what implications do they carry for international law, in both its practice and study? To respond to this question, the article explores the occurrence of the term in a field where the rationale of ambition has recently taken centre stage – international climate law – and uses the crisis narrative as a means of comparison to highlight the specificity of ambition discourses. The argumentative implications of ambition are identified in terms of vision, means and temporality: this article suggests that an ambition discourse fulfils objectives that a crisis narrative is unable to accommodate by calling for structural transformations, motivating states to commit to far-reaching objectives and adopting a long-term perspective focused on incremental change. The shortcomings of an ambition narrative are also highlighted, in relation to its determination and evaluation. The study contributes to shedding light on a new international law discourse to offer a different analytical frame for the discipline.

Why does collective resistance to democratic backsliding emerge in some contexts and not others? The experience of Malawi in 2011–2012 offers an opportunity to explore this question. In the face of attacks on democratic rights and institutions, large-scale popular and civil society mobilization challenged the government’s authoritarian tendencies. Drawing on collective action theories and comparing Malawi’s experience to that of Zambia, VonDoepp argues that Malawi’s resistance arose in an environment that was favorable to its emergence. Economic conditions had generated grievances against government, polarization remained modest, and civil society organizations benefitted from credibility and the presence of allies that facilitated activism.